Nearly daily, I get an email from some well-intentioned reader sounding the alarm over a recent trademark filing. “Can you believe so-and-so company tried to trademark THIS?!” Ninety-nine percent of the time, it’s a misunderstanding of trademark law in general, and as such I usually just give them an “it’s not as bad as it seems,” and carry on with my day.
This time, however, it is as bad as it seems. Sony Computer Entertainment of America has attempted to trademark “Let’s Play”, and the internet is rightfully outraged. Before I get too far into it, it’s important to remember trademarks are broken up into classes of goods. Each trademark can’t be confusingly similar to another mark (you couldn’t trademark “Appel” computers as it’s too close to “Apple”), and each mark can’t be descriptive of the class of goods they are in (Apple brand computers is fine, Apple brand apples is not). That second point is where people usually get a bit confused. While “Saga” was a crazy mark to try and attain in the video game space, “Candy” was less so. One is used in nearly every fantasy/sci-fi series of the past 100 years, the other is arguably something that has nothing to do with games and a word that is associated with a certain brand, even though it’s a common word, like Apple.
Regardless, this time the alarm bells were sounded properly. Let’s Play videos are one of the most popular genres of entertainment on Youtube, Twitch, and the other streaming servers out there. It’s not a brand or small group of videos, it’s the name for the genre itself. It would be like someone trying to trademark “eSports” or “First Person Shooter.”
The application has been momentarily blocked, but only because it was found confusingly similar to a registered trademark. However, it is blatantly wrong to say the United States Patent and Trademark Office has refused or denied the application. I file trademarks constantly, and a lot of them have office actions that need responding to. That’s one of the major reasons websites like Legal Zoom have such a low success rate. They help you put in the application, but when you get pages of legalese in an office action, you’re on your own. Don’t be confused, those office actions are not a “no.” They are a “we need to talk about some things before we say yes.”
I assure you, if SCEA tries to circumvent the current office action holding it up, many attorneys (including myself) will oppose it. I’m not worried about SCEA ever being granted this mark. What I am worried about is the application itself. It shows one of two things:
1. Someone at SCEA, in charge of filing trademarks, does not understand the gaming industry at all.
2. This was a sketchy (in my opinion) attempt to control a hugely popular genre of entertainment.
If SCEA was granted this mark, they could take down an endless array of videos all over the internet. They could arguably control who does Let’s Play videos, what games they can use in them, and a bunch of other issues that cause obvious problems. I believe, however, this is much closer to the first issue.
You see, the government fee for filing a trademark is only around $300, and a lot of in-house attorneys will just throw a bunch of marks in and see what sticks. If they get bounced back, no big deal, a bunch of the others will go through. It’s not unique to the gaming industry, but it’s something I’m not a fan of. Here, that’s probably what happened, but a simple google search (or any cursory search prior to the application) would have shown this was a terrible move.
I just wanted to write quickly to confirm that the angry mob is justified this time, in my opinion, and that the Polygon article I saw at the front of Reddit today was incorrect (and they linked a Trademark Electronic Search System result…you can’t do that…those links expire in an hour). I love SCEA, I’ve had nothing but good experiences dealing with their attorneys, but this was a mistake. Hopefully they withdraw the application sooner than later.